Must Read – Email Correspondence with Appellate Attorney- What Would You Do??

Sent: Friday, February 19, 2016 2:46 PM   (FROM ME)

Dear Mr. xxx, I know that you are no longer Charles’ attorney however, I do have a few items to discuss with you. Deacon Fran Viselli thought that I should let you know what was going on in our minds. I hope that you do not mind. Bill, this is my son’s life and there aren’t enough funds to hire an attorney.

We are thinking of going pro se. 

Also, one of your colleagues suggested that I reach out to you, as some of the things that I am mentioning might have been able to be raised on direct appeal. If so, perhaps you can find a way to correct it. He feels that you are pretty much a “stand-up guy”.

Well, here goes.

 Mr. xxx, the verdict form has Charles convicted of attempted robbery with a firearm and further find that he possessed a firearm in the commission of the offense. However, his lesser included offenses were in the following order as robbery with a deadly weapon, robbery with a weapon, robbery and theft. The written jury instructions says the lesser are attempted robbery with a deadly weapon, attempted robbery with a weapon, attempted robbery and petit theft. 

Also, I do not know if there are even any lesser for inchoate crimes.

Please see the verdict forms and jury instructions below and let me know your thoughts. Of course, you are under no obligations to reply to my email and I will fully understand if you decide not to do so. 

How is a jury to convict of lesser charges, when they know a robbery was not committed? They had no choice but to convict of attempted robbery.

Also, an element was left out of the attempted robbery instructions, in addition to robbery charges being read to the jurors and included in their written instructions.

I was told that charging attempted robbery and aggravated robbery with a firearm and then asking the jurors to find that the defendant possessed a firearm may be procedurally incorrect because the firearm is the enhancer. 

I was told that the instruction for the aggravated assault should have read aggravated assault with  a deadly weapon and then if you found that the weapon was a firearm, etc. 

Another thing is that aggravated assault with a firearm and attempted robbery with a firearm is double jeopardy because it happened with the same victim at the same time. 

Mr. xxx, I know that you are no longer Charles attorney; however, I am hoping that you will be empathic to our situation.

With Kind Regards, Pam

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Sent: Fri, Feb 19, 2016 3:45 pm (From Appellate Attorney)

Pam,

 

Thanks for your email. I am happy to look at the issues you have identified.

 

I will get back to you next week after I have had a chance to review the records in Charles’ case and I am able to specifically address each issue with you.  I want to help you and Charles in any way possible.

 

Thanks,

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Sent: Fri, Feb 26, 2016 6:58 am (From Appellate Attorney)

Pam, I have not forget about you and Charles’ case. I have had a busy week and have not had sufficient time to review the records. I will get back to you as soon as possible.

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Sent: Tuesday, March 08, 2016 5:49 PM (From Me)

Hi , I know that you are busy. Please let us know if you had a chance to review the records.

Thanks, Pam

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Sent: Tue, Mar 8, 2016 4:53 pm (From Appellate Attorney)

Hi Pam, I have reviewed some of the records and done some research based on the information you have provided. I hope to complete my review shortly and will be back in touch to give you my thoughts on what can be done to help Charles with his case.

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Sent: Mar 21, 2016 11:01 AM (From Appellate Attorney)

Pam, After reviewing the records, I believe that there are legitimate arguments to be made that the jury instructions and verdict form used in Charles’ case are incorrect.  It is my opinion that these errors can be addressed in a Rule 3.850 Motion for Post conviction Relief filed in the circuit court. The motion would challenge the instructions and verdict form and may assert that Charles’ trial attorney failed to properly object to these errors.  If you would like, I am willing to file and handle that motion on Charles’ behalf at no cost to you.

It is also my opinion that there may be a potential claim of Ineffective Assistance of Appellate Counsel based on my failure to raise this issue in the appeals court. However, I should not be the person to advise you on that potential course of action.  

I have an attorney who I know and trust to do a good job that may be willing to handle any potential claim of ineffective assistance of appellate counsel at no charge to you.  I will speak to that attorney about Charles’ case.  If she is willing to help you, I will put you in touch with her.  

I am going to be out of the office on vacation for the remainder of this week but promise to be back in touch early next week so we can move forward towards helping Charles.  

Thanks,

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Sent: Mar 23, 2016 7:05 PM (FROM ME)

Hi xxx,
    Thank you so much for your email. We are very appreciative.    
    Mr. xxx, we know that you are very busy and we were unsure of when you was going to respond
    Charles and Fran were very anxious to get something in the court in order to stop the clock, in the event Charles wanted to file Federal. As you are aware, we only have a year statute of limitation  to file Federal from the time of sentencing. (I think) Therefore, meaning no disrespect, Charles has already filed his 9.141. Surprisingly, it was granted.
    We would be more than happy and appreciative, if the attorney you were speaking about would take over from there.
    Additionally, we would be grateful to get started on the 3850, in hopes of getting it filed before the one year statute of limitations.
    Mr.. xxx, the fact that you are willing to assist us is an example of your extraordinary character.
Thank you from the Bottom of All of Our Hearts,
Pamela, Fran and of course Charles. 
PS; As you probably know(from past experience:-)) I already have many notes on what I feel that Gary neglected to do before and after trial. ( from a novice point of view)
I would be happy to share it with you. 
Enjoy your well-deserved vacation.
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THAT WAS OUR LAST CORRESPONDENCE.
ALL THOUGHTS ARE WELCOMED
I WANT TO BELIEVE THAT HE REALLY WANTS TO HELP, YET HE HAS STOPPED REPLYING

Justice for My Son 2

PO Box 70111

Tuscaloosa, Alabama 35407

Email – justiceformyson2@aol.com

Twitter – https://twitter.com/justiceforhim2

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